*1 817 in a hostile he moved spoke manner as before the just
across bed toward her Marriage: Sybil In Re The June HOFF larger shooting. He was than MANN, much Petitioner-Appellant, [she], and she testified she believed she rifle, no other needed “Because I had HOFFMANN, Respondent. Rupert Paul against him. I outrun defense couldn’t him, very agile.” Additionally, he was No. 65457. injured had three times
he [defendant] Missouri, Supreme Court of the preceding within nine months. [De- En Banc. shooting, testified that after the fendant] Stanley pursued through Butler her Sept. until
house she fled added outside. [She] escape, after her could she see
through window, family and room Stanley “looking
observed Butler for me gun, he I
and had the hid until I and so the officers
saw arrive.”
Nothing in the indicates evidence act, Stanley aggressive Butler’s defendant,
described was other than it was, therefore,
appeared to be. There no support
evidence to that defend misperceived thereby
ant the act mis required
took the force it. repel Accord
ingly, the trial court in omitting did not err
paragraph 5 from MAI-CR2d 2.41.1. State Robinson, 629 (Mo.App.
1981). Stanley
Whether Butler in fact did be- was,
have as recounted defendant
course, determine, for the jury to
doing jury so the required was not to be- Porter, her.
lieve State v. (Mo.1982); Malady, State v. (Mo.App.1984); State v.
Moon,
Judgment affirmed.
All concur. *3 Turcotte, Jr.,
John Clayton, A. re- spondent.
GUNN, Judge. (wife) Sybil Petitioner Hoffmann appeals the trial court’s decree dissolution which set respondent aside certain (husband) Paul Hoffmann the determi- separate, nation it was § 452.330, according to Cum.Supp. RSMo 1983.1
The trial court’s decree was entered from adoption findings of fact and conclu- *4 of special sions law of a appointed master upon application parties. and consent of the sharply A divided division of the Eastern District affirmed the trial court. Upon ap- plication wife, of the transfer to this Court granted. was The case is thus decided as if original appeal. Rule 83.09. The judgment is affirmed. Edwards, Lynn Morgenst- predominant
Richard H. The appeal pertains E. issue on ern, Clayton, petitioner-appellant. for closely to the corporate status of 452.330, Cum.Supp.1983 devise, provides: property acquired by gift, bequest, 1.§ RSMo for descent; or proceeding 1. In a nonretroactive for invalidi- ty, tion, (3) marriage legal by separa- Property acquired spouse dissolution of the or a after a de- proceeding disposition or prop- legal in a for separation; of cree of erty following marriage by (4) dissolution of the a Property by agreement valid excluded of jurisdiction court personal which lacked over parties; and spouse jurisdiction the absent or lacked to dis- (5) property acquired The value of increase in pose property, apart of the court shall set prior marriage. to the spouse property each his and shall divide the property acquired by spouse 3. All either property proportions in such as the subsequent marriage prior to the and to a de- just considering court deems all after relevant legal presumed separation cree to be mari- including: factors property regardless tal of whether title is held (1) spouse of each contribution to the individually by spouses in or some form of acquisition property, including of the marital coownership joint tenancy, tenancy such as homemaker; spouse the contribution of as common, tenancy by entirety, and commu- (2) property apart The value of the set to each nity property. presumption of marital spouse; property by showing is overcome (3) The circumstances of economic each a method was listed in spouse at the division time the is to subsection 2. effective, including desirability become 4. it The court's order as affects distribution awarding family right home or the to live of marital shall be a final order not periods therein for reasonable having custody to the subject to modification. children; any and any copy 5. A certified decree of (4) court parties during The conduct mar- affecting riage. title to estate shall real forthwith be purposes 2.For sections filed for record in the office of the recorder 452.300 to 452.- only, property" proper- county "marital means all deeds of the state in which the real ty acquired by spouse subsequent either to the estate is situated the clerk of the court in marriage except: made, filing which the decree and the fees (1) by gift, Property acquired bequest, devise shall be taxed as costs cause. descent; or Statutory references will be to RSMo Cum. (2) Property acquired exchange proper- Supp.1983 unless otherwise stated. ty acquired prior exchange to the or in In percent. 35.3 corporation to increase to contends name. The wife in the husband’s gave 32 shares of the The husband the husband it is marital otherwise, viz, separate given one argues it is his son. He also had stock to his having prior newly corporate name hired property, been his to a share of stock treating aspect, con- marriage. In this the hus- This reduced officer 1966. “incep- given shares, leaving to the so-called sideration is stockholdings to 223 band’s rules and “source of funds” tion of title” interest percent a 29.5 him with question of the status relating to the corporation. rights. executive serves as chief The husband appeal by the wife on points raised Other officer, and board director president 1) limitations on the trial court’s concern: another His corporation. two brothers financial records of the hus- discovery of only other mem- corporation officer are 2) family corporation; an and the band of the board of directors. bers gross mainte- alleged miscalculation of retired, father After the husband’s award; 3) failure of the trial court nance an increased corporation prospered due to alleged give consideration to assets to have cooling brought towers about demand for 4) husband; squandered by the been by the Water Act of 33 U.S.C. Clean suit attorney’s fees and determination salary seq. The 1251 et husband’s monies. steadily be- corporate officer increased 1963; they married in parties were 1980. The dividend rate tween 1964 and They stipulated to a separated also to all officers and bonuses per- separate of certain marital and division *5 during period. increased that tangible sonal of a nature. sporadically after her The wife worked made trial court also determination mostly in clerical marriage respondent, to marital and an division of other was a satisfac- positions, until 1975. She periodic of maintenance. award traveled tory and hostess and homemaker trial major dispute centers on the the husband on business on occasion with sepa- court’s award to the husband as his trips. rate of 223 shares of stock separate dividing the marital and In Towers, (Lilie- Cooling Inc. Lilie-Hoffmann court awarded the wife property, the trial Hoffmann), corporation in closely $110,000 residence valued the marital had since 1930. which the husband worked $26,000 on the basis of less encumbrances assigned a of The trial court also value possessed a more favor- husband $962,662 the stock. guilty situation and had been economic able family corpo- Lilie-Hoffmann is a owned The trial court also misconduct. of marital ration, by the father founded husband’s separate property the husband’s considered person and another who the father even- stock, $926,662, valued at of tually bought out. Prior to his to him. Other marital was set aside which wife, acquired 256 the husband had IRA, assets, including two bank husband’s representing company stock shares of policies, life insurance accounts and two outstanding. percent 16.17 of the shares pri- him he was the were awarded corpora- marriage, in After the mary contributor. 858 shares purchased and retired tion attorney’s fees of awarded The de- The wife was by the husband’s father.2
owned
$7,024.64
periodic
$13,000,
in costs and
outstanding
crease in the total number
$4,250
month,
per
as she
interest in the maintenance
caused the husband’s
shares
the same
the husband’s stock remained
corporation paid
value
value of
the near book
2. The
$81,510
redemption
purchase
the fa-
stock
price
of the father’s
for the
after the
$1,510
stock, paid
corporation
with
corporation.
shares of
ther’s 858
The value of the
$80,000 payable
corporation
price.
note of
purchase
cash and
the amount of
reduced
monthly
The book
$832.70.
installments
incapable
supporting
ty
was found
herself
not included
within
definitive terms
through appropriate employment.
of 452.330.2
is presumptively sepa
and .3
rate property. Busby v. Busby, 669
Initially
indite the
we
standard of
Therefore,
S.W.2d at 599.
unless there is
governing
appeal:
review
this
we must
evidence of record to indicate an intent to
sustain the trial
decree
court’s
unless there
change the
being
status of
stock from
it,
is no
support
substantial evidence to
separate property,
husband’s
it should
against
weight
evidence,
unless it
is
property.
be considered marital
Davis
erroneously
unless it
declares the law or
Davis,
(Mo.App.
erroneously applies
unless it
the law.
1976).
Sturgis v.
Sturgis,
provided any
We have not been
au
thority
postulation
for the wife’s
percentage
increased
of ownership of a cor
I.
poration by a stockholder due to retirement
The wife first contends that
the hus-
of stock
separate
converts the
from
percentage
band’s increase in
ownership
Instead,
to marital
it is more
value of
stock is marital
logical
equi
to conclude that the increased
property and
be
must
shared with her.
table interest of the husband would remain
argument
regard
Her
in this
is threefold:
statutory exemption
proper
as a
to marital
a) redemption of the father’s stock trans-
452.330.2(2)
ty.
provides
any
Section
newly
formed
per-
increased
husband’s
during
marriage in ex
centage
b)
marital property;
interest
into
change
property acquired prior
to mar
expended
funds and efforts were
riage
separate
is
property. The husband’s
stock; c)
redeem the
increase
value
new ownership
may
interest at least
be
part
stock was due
to her efforts.
exchange
viewed as such an
for a former
interest.
a.
exchange analogy
appropri
adopting
The trial court
the master’s
ate because the
received no
husband
addi
findings and conclusions of law found that
tional value as a
of the retirement
result
separate
husband’s stock remained his
Although redemption
certain stocks.
*6
property despite
corporation’s purchase
the
corporate
Hoffmann,
Mr.
the
stock from
and retirement of the father’s shares. The
outstanding
Sr.
decreased the number
§
guidepost
pertaining
452.330.2
to this
1,583
thereby
shares from
to
increas
case does not
otherwise.
direct
respective ownership
the
husband’s
corporation
percent,
the
from 16 to 35
It
undisputed
is
that the husband
book value and number
shares in his
the corporation
256 shares of
stock
possession did not
This is
deviate.
because
prior to
marriage.
sepa
his
That was his
corporation
worth of the
was diminish
§ 452.330.2;
property.
rate
Busby Bus
from
paid
ed
the amount
by, 669
(Mo.App.1984).
treasury
repurchase the
to
father’s stock.
asserts, however,
The wife
that the retire
Therefore,
percent ownership
the 16
inter
ment of the father’s stock created a new
acquired prior
est
the husband’s
mar
during
interest
the course of the
riage
merely exchanged
larger
for
was
a
Hence,
marriage.
argues,
por
she
all or a
ownership
corporation
of a
percentage
that
tion of the
was transformed from
stock
was worth less.
separate
property.
to marital
She rests
preposition
regarding
A
analogy
her case on
and the
similar
the absence
452.330.3
acquired
during
separate
that all
the mar
effect on
status of
splits
riage
presumed
property.
is
to be marital
stock is found
stock
circum-
—a
McDowell,
imposed on the husband’s Property Krauskopf, Marital marriage. corporation to percent ownership Dissolution, 43 Mo.L.Rev. Marriage spent on its the extent marital funds were given (1978). interpretation 157, 180 acquisition. whether “acquired” determines the term any portion unit receives the marital Although appellate courts our which appreciated value of unit recognize liens in favor of the marital economic conditions. general due to separate property when marital against employed major theories have been *7 Two or expended are to reduce a debt funds interpreting this term: in by the courts question, the value of the asset enhance of funds.” title” and “source “inception of 599; at Bish Busby Busby, v. 669 S.W.2d upon commu- premised doctrines are Both 512, (Mo.App. Bishop, 658 S.W.2d 515 op v. have their concepts which nity property Rickelman, 1983); 625 Rickelman v. Note, Marriage Dis- Spanish law. roots in 901, (Mo.App.1981); Raven 902 S.W.2d Toward Approach Equitable An solution: 270, 272 Ravenscroft, v. 585 S.W.2d scroft 538, Distribution, 45 Mo.L.Rev. Property presented no was (Mo.App.1979), evidence Note, Marriage- (1980); Dissolution 540 of to redeem the the funds used Has In- Property Which Division of by the paid have been otherwise would 479, Value, 480- 42 Mo.L.Rev. creased in the form to the husband (1977). 81 evidence, such Absent salary or dividends. have appeal in Missouri courts of contention petitioner’s find no merit we inception of of the principles the expend- followed funds or efforts were that marital 824 theory. Busby supra; Dissolution,
title v. Busby, Property Da- at Marital Marital Davis, Stark, supra; (1978); Note, vis v. Stark v. 539 43 157 Mo.L.Rev. Dissolu (Mo.App.1976); Cain, S.W.2d 779 v. Marriage-Division Property Cain tion of Value, 536 ap- S.W.2d 866 This Has 42 Which Increased in Mo.L. proach property (1977); Note, separate Marriage classifies or' 479 Rev. Dissolu marital moment Equitable Approach at the title is taken. Even An tion: Toward if employed Property Distribution, marital funds are to reduce 45 Mo.L.Rev. 538 (1980). separate the property, indebtedness on the property separate. character of the remains noted, As commentators have tradi-
Busby Busby,
v.
825
application of
the trial court’s
and
reverse
preting its statute merit consideration
adopt
rule
the source
inception of title
and
comment.
at
dividing property
approach
funds
in
of
Supreme
noted that
The Maine
Court has
applying
Past
cases
dissolution.
Missouri
community
entitled to
should be
the marital
Stark,
rule,
Cain,
title
inception
e.g.
of
proportionate
in the
increase
value
share
longer
no
followed
should
be
Busby,
and
improve-
property
attributable to
regard.
that
by
and labor.
ments made
marital funds
Tibbetts,
A.2d at 76-77.
stan-
newly adopted
Tibbetts v.
406
these
applying
In
if the
recognizes
however,
uncompen-
further
that
dards,
That court
we find that no
deprived
proportion-
a
marital unit was
of
efforts
are attribut-
marital
of funds
sated
improvements
in the value of
corpora-
ate share
to the increase
value
able
funds,
ex-
marital
an incentive
added with
present
The wife
in the
case.
tion’s
sophisticated spouse
a
to divert
ists for
application
gains no benefit from the
thus
sepa-
improvement
for the
of
marital funds
concept
funds
in this instance.
of source of
1179,
Hall,
Hall v.
462 A.2d
property.
rate
com-
point
raises the
The wife
(Me.1983).
1182
contemplates that
munity property concept
classify-
analyzing
approaches
both
of
In
earning potential
community owns
dissolu-
property for division in marital
a
spouse.
example, when
of each
For
funds
tion,4
find that
of
we
the source
business,
employed
portion
a
spouse is
preferable
apply
theory is the
method
of the business assets attributable
Although
jurisdic-
a majority
Missouri.
of
community
and
spouse’s skills
talents is
currently
inception
adhere
of
tions
to the
property.
rule,5
in an
employment
believe
title
we
its
case,
man
In this
the husband’s
property
change dra-
era when
values can
fami
leadership
and
of his
agement efforts
matically
inequitable.
impact
an
ly corporation obviously had
Further,
jurisdictions
we follow other
stock.
in value
the increase
of
adopted
of funds
which have
the source
no sinecure.
position
company
with
His
statutes
to Missouri
approach with
similar
paid salary and received
also was
But he
being
by defining
“acquired”
the term
his services
and dividends for
bonuses
“on-going process making payment
an
and in
property
marital
became
which
acquired property”. Harper
v. Har-
v.
will
Norman
the wife
share.
which
929;6
Tibbetts,
per, 448 A.2d at
v.
Tibbetts
(Mo.App.
Norman,
680, 683
604 S.W.2d
vices.
corporation.
parties presented expert
Both
is clear
It
from the
that the un-
record
testimony
regard
witness
with
to
value
the
growth
prosperity
compa-
usual
and
of the
of the
expert
stock. The wife’s
evaluated
ny
directly
the
was
attributable to
unfore-
corpo-
the
stock holdings
husband’s
in the
(for
salutary
but
corporation)
$2,723,000.
seen
the
con-
expert
ration as
The husband’s
sequences
legislative
of federal
$962,662.
experts
and state
countered with
Both
enactments vis-a-vis
of the hus-
capitalized
earnings
sole efforts
the
corporation,
of the
band.
expert
the
the
but
husband’s
discounted
percent
public
value
due to a lack of
relating
There was also
to
evidence
the
stock,
market for
husband’s minori-
salaries,
corpo-
bonuses and
to all
dividends
ty
corporation
and the fact
interest
rate officers. This was
considered
only
product.
manufactured
one
court in reaching
trial
its decision. None
finding
evidence
justify
of this
would
is,
course,
It
eval
difficult to
compensated
the husband was inadequately
closely
corporation.
uate the
of a
stock
working
during
corpora-
for his
efforts
given
is
But deference
to the trial court’s
growth. Hence,
tion’s
trial
court’s
vantage
credibility
coign
judge
to
judgment
property
was not
Busby Busby,
at
witnesses.
to
corporation’s
used
increase the
value
599;
Oldfield,
Oldfield
properly supported by
credible evi-
weight
given
(Mo.App.1984).
to be
judg-
dence. We will not
our
substitute
opinion
is for the trier of fact.
evidence
ment
reach a
In re
different result.
Lehr,
City
Lake Lotawana v.
Bruske,
Marriage
295.7
Therefore,
accept
testimony
the trial court could
The wife’s
that her
contention
ser
expert
reject
of the husband’s
homemaker,
and efforts as a
travel
vices
wife’s.
companion
were
and entertainer
contri
butions made to the enhancement of the
III.
merit,
value has no
she made no
stock’s
argues
financial
to the
next
that the trial court
substantial
contributions
The wife
holding
earnings
nor
contribu
that the retained
personal
business
were her
erred
mari-
sufficiently
corporation
addi
did not constitute
tions
extensive to warrant
not
She
compensation by sharing
property
the hus-
tal
were
excessive.
tional
theory,
corporation
primarily
community property
serves
as a means
increases
and the
7. Under
marriage
only
during
is
funds for the
value of
to divert marital
benefit
spouse
spouse,
considered marital
if the
veil has been
the one
prior
portion
pierced
owned the
attribute a
who
of the increase
controlling
Dilling
nor an em-
neither
stockholder
value to the marital unit.
the stock's
ployee
corporation.
Dillingham,
(Tex.Ct.App.
of funds
The source
ham
827
bers,
unilaterally
if
had
he could not
declare or
contends that
the board of directors
corporate profits
voted to distribute the
to withhold dividends. Declaration of divi
officers,
the stockholders and
rather than
dends is a matter within the discretion
§
corporation,
351.220,
retain them within the
the in-
board
directors.
RSMo
1978;
come to the husband
mari-
would have been
Ry.
see St. Louis
v.
Southwestern
Norman,
property.
tal
604
1057,
249,
Norman v.
Meyer, 364 Mo.
272
256
alleges
S.W.2d at 683. She
that the hus-
(1954),
dismissed,
942,
appeal
349
75
U.S.
position
corporate
band’s
and influence in
871,
(1955),
denied,
Missouri courts have not addressed the
IV.
issue of
earnings
whether retained
in a
closely
corporation
held
constitute marital
complains
trial
The wife
court
property.
Norman,
Norman
v.
limiting discovery
certain
erred
docu-
jurisdictions
at 683. Other
which
requested
had
the financial
ments. She
have considered the issue cite the critical
corpora-
statements and tax returns of
distinguishing
being
factors as
a control
personal banking
tion and the
records of
ling interest in
corporation by
the own
from the time of their mar-
husband
er
and substantial control over deci
trial, urging
riage in 1963 until the time of
sions
corporate earnings.
to distribute
only
they
generally
“relevant”.
were
F.J.H.,
(Del.1979);
J.D.P. v.
But the request husband owned 29.5 broad and burdensome. On percent outstanding corporate appeal pursues the wife a new specific controlling and was not a the more contention that the shareholder. makes Further, only proven one of four board mem- records she was denied would have Co., Mfg. recognize closely corpora- Mo.App. 8. But see Brown v. Luce 9. We that in a held (1936), may superior op- have a tion portunity shareholders in which di- manipulation corporate activi- closely corporation relinquished rectors of control of and individual ties and authority their over declaration of dividends to O’Neal, Corporations, Close 1.09a assets. 1 president. (2d 1971). portion money expended that a motion to amend the decree on the basis of redemption on the stock miscalculation indicates that the award was paid would have been to the husband as not an error in calculation. salary and was therefore marital *11 provision The in the award for The trial court’s determination of $12,240 merely to cover income taxes was relevancy discovery request of a is variables, an estimate. Because of other it subject only upon showing to reversal impossible accurately is assess the abuse of discretion. rel. State ex liability. judge Norfolk wife’s future tax The trial Dowd, 1, 4 Ry. & Western v. 448 S.W.2d awarding has discretion in substantial (Mo. 1969). Further, banc the wife bears maintenance, Mills, Mills v. 663 S.W.2d demonstrating the burden of relevancy 369, (Mo.App.1983), required 374 and is not materiality sought and of documents to be to meet all the needs of the receiv they reasonably discovered and that are Raines, the award. Raines v. 583 discovery calculated to lead to the of admis 564, (Mo.App.1979). S.W.2d 567 No abuse sible evidence. ex rel. Bush v. El State part of discretion on the of the trial court liott, 631, (Mo. 1963); 633 banc appears point. on this Baker,
State ex rel. Kuehl 663 v. S.W.2d 56.01(b). (Mo.App.1983); 411 Rules VI. case, present In the made no wife The wife contends the husband dissi- arguments support record of her of her pated certain marital assets. discovery may motion. She assert During the husband appeal. some new v. McDowell $3,700 joint savings converted a account of McDowell, 521; 670 S.W.2d at Blair $3,000. to his name and withdrew He also Blair, (Mo.App.1980). S.W.2d policies cashed life insurance and certifi any The record is destitute of con deposit. cates of There is no evidence that appeal; tention she seeks to make on she squan has secreted or has husband has failed to demonstrate on the record the anticipation dered the marital relevancy of the documents to the trial Therefore, ap of divorce. it would not be Thus, court. there was no of discre abuse propriate to order reimbursement of funds tion in permitting only the court’s order Calia, to the wife. Calia v. discovery limited of the financial records. (Mo.App.1981). We defer to the findings regard. trial court’s in this
y. alleges The wife the trial erred in court VII. by misapplying award of maintenance point is The wife’s final that the trial the tax tables. failing her the full court erred award peri- The court annual awarded wife attorney’s expenses fees and amount of $51,000, odic and included maintenance of requested. $12,240per year esti- within the award $13,000 pay ordered to husband was complains mated income taxes. The wife $34,328 remaining legal balance of liability approximately that her tax will be $7,024 $9,024 remaining fees and $24,000 thus, per year, reducing her net expenses. The award balance income. findings indicating based on of.fact allegation There is no that the mainte- legal tardy pursued research was and meet her nance award is insufficient to issues, depositions were unneces- meritless Indeed, scarcely penurious. needs. it is sarily detailed and witness fees were exces- does the record establish that Nor sive. ignored court the factors set forth § 452.335, determining The trial court is vested with broad RSMo 1978 in fees, attorney awarding maintenance The record on the discretion award. significant is a corporation” 452.355, discre- The “close and abuse of RSMo A close jurisprudence.1 in modern concept of such prerequisite to an overturn tion is a part- to a many similarities corporation has McDowell, 670 awards. McDowell in value of shares nership.2 An increase Dallas, 524; Dallas result of is often the close No abuse major stockholders personal services here, point is denied. shown employees. officers or who are also judgment is affirmed. the trial approach allows source of funds por- court, proof, to treat a given adequate HIGGINS, BILLINGS, DONNEL- of shares tion of the increased value LY, JJ., concur. though property, even stock as *12 marriage. prior to shares were RENDLEN, C.J., concurs in result. exalt substance Any approach would other J., WELLIVER, sepa- in in concurs result greatly magnify the and would over form opinion rate filed. associ- importance the choice of business ation. BLACKMAR,J., part in and dis- concurs however, filed. part separate opinion satisfied, in in that
sents I am not opportunity full appellant wife had WELLIVER, concurring in result. Judge, properly to a trial court present her adop- in I do not believe I concur result. which this Court instructed in the doctrine the funds” test is tion of the “source of tried The case below was applies. now disposition of this case. necessary to the master,3 applied “incep- who before “inception of title” Abandonment of the controlling The rule as law. tion of title” adoption test and of the “source of mas- apparaently adopted the judge trial only serves to saddle an al- funds” test findings, and recommen- ter’s conclusions ready judiciary with a tedi- overburdened unlikely highly rendered. It is dations as tracing generally ous task of will be as af- would have been that the result below undeterminative of the case as the discus- might have by any evidence the wife fected sion was herein. her husband’s on the effect of adduced in the the value of his shares
labors on
appears
BLACKMAR,
The trial court also
Judge, concurring
part
corporation.
substantially.
discovery
dissenting
part.
to have limited
points
principal opinion
The
holds
wholly agree
principal opinion’s
I
in the
fully
appeal
were
relied on
rejection
“inception
title” rule as
In court-tried
the trial court.
presented to
appeals
exemplified by several court of
what
to determine
it is often difficult
cases
Court,
adopted by this
opinions but never
opt for clarifica-
I would
presented.
espousal
and in the
of the “source of
tion.
adopted
The
accords
funds” rule.
rule
argues that
re-
opinion
principal
The
purpose
dissolu-
with the
husband’s father’s stock
demption of the
gives
judges the
tion statutes and
trial
transaction because
was a neutral
problems of hold- 1964
authority
approach
Book
at “book value.”
redemption was
corporations realistically.
ings in close
1. F.H.
England,
ber of
Galler
(1975),
stockholder
of the "close
(1964);
corporate
N.E.2d at 511.
stockholders; (2)
O’Neal,
Donahue
specifying
Inc.,
Galler,
stock;
participation...."
corporation”
Close
367 Mass.
v. Rodd
32 Ill.2d
Corporations, §
principal
(3)
no
Electrotype
as:
ready
substantial
"(1)
203 N.E.2d
rate often elects to holder, recognizing while that there would plow earnings hope realizing back be “substantial difficulties in evidence and values, future payouts or because would be proof.” agree I with his statement subject to federal income tax. A decision no these difficulties furnish warrant for entirely standpoint which is sound from the treating spouse inequitably, reject corporate policy, might operate still any suggestion that our courts are so over- disadvantage spouse of a shareholder’s they not the time burdened that do have deprive spouse so of a share of equity. hope do I that this Court’s decision the fruits of the shareholder’s The labor. point way to trial courts will and to spouse required should not be to demon- attorneys must as to what be shown strate fraud or It bad faith. should be may order that the of a shareholder sufficient to show that the increase result- present present required proof. The personal ed from effort. however, plaintiff, opportu- should have the partnership analogy helpful. nity present proofs additional so that a partnership necessarily income of must properly instructed trial court could decide be reflected the individual returns of rights recognized her newly based partners, and the each income de- principles Judge opinion. Gunn’s partnership by rived from the a married II, V, partner would I concur in Parts VI and be VII great simply principal opinion, remand difference should be too but would 4. Alexander, Corporations, Henn and text. Law of 3d (West, 1983), p. accompany- Ed. fn.
«31 hearing touching I, further Parts III and
IV. Missouri,
STATE of
Plaintiff-Respondent, FITZPATRICK,
David
Defendant-Appellant.
No. 65564.
Supreme Missouri, Court of
En Banc.
Sept. 1984.
Rehearing Denied Oct.